1. Heard, Shri Pradeep Chandola, learned counsel for the petitioner and Shri Pankaj Srivastava, learned counsel for the respondents.
2. The instant writ petition has been filed by the petitioner challenging the order dated 16.11.2011 passed by the Assistant Commandant, Headquarter 3rd Battalion Railway Protection Special Force, Alambagh, Lucknow i.e opposite party no.3 by which the petitioner has been dismissed from service invoking the provisions of Rule 161 readwith Schedule-III of the Railway Protection Force Rules 1987.
3. The facts, in brief, for adjudication of the present writ petition are that the petitioner was inducted in service as Constable under Railway Protection Special Force on 01.02.2009. He applied for permission to appear in Central Police Forces (Assistant Commandant) Examination 2011. The petitioner was granted no objection certificate by the competent authority which was communicated by means of the order dated 01.08.2011 to spare the petitioner for examination on production of admit card with condition laid down in the schedule-VI i.e "Agreement forms" of Rules 1987.
4. The petitioner had received admit card for appearing in the Central Police Force (Assistant Commandant) Examination 2011 which was scheduled to be held on 09.10.2011. The petitioner proceeded on 06.10.2011 to appear in the said examination. He was arrested on 07.10.2011 in Ernakulam Express Train on the allegations / charges regarding commission of offense under Section 25 (1-A) of the Arms Act, 1957 and a F.I.R was lodged. Immediately thereafter the petitioner was suspended by means of the order dated 07.10.2011.
5. The petitioner was released on bail in pursuance of the order passed by the Gauhati High Court on 03.11.2011. The petitioner challenged the suspension order dated 07.10.2011 by filing Writ Petition No. 8385 (S/S) of 2011 before this Court. After filing of the writ petition the petitioner received the impugned order of dismissal dated 16.11.2011, therefore the petitioner has challenged the same by means of the instant writ petition. During pendency of the present writ petition the criminal trial has concluded and the petitioner has been acquitted of the charge under Section 25 (1-A) of the Arms Act, 1957 and set at liberty by means of the judgment and order dated 30.05.2014 passed in Sessions Case No.46 (K) of 2013 under Section 25 (1-A) of Arms Act arising out of G.R. Case No.9430 of 2011 (State of Assam Vs. Ranjit Kumar Rana), a copy of the judgment has been filed by the petitioner as Annexure No.A-1 to the affidavit filed alongwith an application for interim relief vide C.M.Application No.80895 of 2014.
6. Submission of learned counsel for the petitioner is that the petitioner has been dismissed from service without holding any inquiry and affording any opportunity to him on the basis of the reports dated 08.10.2011, 09.10.2011, 07.11.2011 and 12.11.2011 in utter violation of principles of natural justice and Article 311 of the Constitution of India. The petitioner has been dismissed merely on the ground that the first information report was lodged against the petitioner and he was arrested which could not have been done in accordance with law. The impugned order is violative of provisions of Section 9 of the Railway Protection Force Act, 1957 (here-in-after referred as RPF Act 1957) and Rule 153 and 161 of the Railway Protection Force Rules, 1987 (here-in-after referred as RPF Rules 1987).
7. Learned counsel for the petitioner further submitted that the reasons assigned in the impugned order for not holding inquiry are arbitrary, illegal and baseless because the petitioner was released on bail on 03.11.2011 and ground taken for dispensing with the enquiry are misconceived and baseless, therefore the contention of the respondents that the inquiry can not be held is totally wrong and false. He further submitted that the petitioner has been exonerated in the criminal trial by means of the judgment and order dated 30.05.2014 and nothing has been found against the petitioner. Therefore the impugned order is not sustainable in the eyes of law and is liable to be quashed and the petitioner is entitled to be reinstated into service with all consequential benefits of service and arrears of salary.
8. Learned counsel for the respondents submitted that the impugned order was passed in accordance with law under Rule 161 of RPF Rules 1987 readwith schedule-III as the petitioner was arrested and lodged in jail. There is no illegality or infirmity in it and the writ petition is liable to be dismissed. However he has not disputed that the petitioner has been acquitted in the criminal trial and as per his instructions no appeal has been filed against the judgment and order dated 30.05.2014.
9. I have considered the submission of learned counsel for the parties and perused the record.
10. The petitioner was inducted in service as constable under Railway Protection Special Force, on 01.02.2009. He was arrested on 07.10.2011 in Ernakulam Express Train on the allegations / charges regarding commission of offence under Section 25 (1-A) of the Arms Act, 1957. He was suspended by means of the order dated 07.10.2011. Thereafter, the petitioner was dismissed by means of the order dated 16.11.2011 without holding any inquiry and affording opportunity to the petitioner and invoking the powers provided under schedule-III readwith Rule 161 of the RPF Rules 1987 dispensing with the procedure for imposing major punishment provided under Rule 153 of the RPF Rules. The petitioner was released on bail on 03.11.2011.
11. The dismissal order has been challenged in the instant writ petition on the ground that it is violative of provisions of Section 9 of the RPF Act 1957 and Rules 153 and 161 of the RPF Rules 1987.
12. The schedule-III of RPF Rules 1987 provides the disciplinary authorities and their powers which are not in dispute. Section 9 of the RPF Act, 1957 provides that subject to the provisions of Article 311 of the Constitution and to such rules as the Central Government may make under this act, any superior officer may dismiss, suspend or reduce in rank to any (enrolled member) of the force whom he shall think remiss or negligent in the discharge of his duty, or unfit for the same. Section 9 is reproduced as under:-
"9. Dismissal, removal, etc., of members of the Force.--(1) Subject to the provisions of article 311 of the Constitution and to such rules as the Central Government may make under this Act, any superior officer may--
(i) dismiss, suspend or reduce in rank to any [enrolled member] of the Force whom he shall think remiss or negligent in the discharge of his duty, or unfit for the same; or
(ii) award any one or more of the following punishments to any 4[enrolled member] of the Force who discharges his duty in a careless or negligent manner, or who by any act of his own renders himself unfit for the discharge thereof, namely:--
(a) fine to any amount not exceeding seven days' pay or reduction in pay scale;
(b) confinement to quarters for a period not exceeding fourteen days with or without punishment, drill, extra guard, fatigue or other duty;
(c) removal from any office of distinction or deprivation of any special emolument."
13. The Central Government, in exercise of the powers conferred by Section 21 of the RPF Act 1957, has made the RPF Rules 1987. Rule 153 provides the procedure for imposing major punishment. Rule 161 provides the special procedure in certain cases, in exercise of which the petitioner has been dismissed from service. Rule 161 of RPF Rules 1987 is reproduced as under:-
"161. Special Procedure in certain cases :
Notwithstanding anything contained anywhere in these rules-
(i) where any punishment is imposed on an enrolled member of the Force on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) where the authority competent to impose the punishment is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules;
(iii) where the President is satisfied that in the interest of security of State and the maintenance of integrity in the Force, it is not expedient to hold any inquiry in the manner provided in these rules; the authority competent to impose the punishment may consider the circumstances of the case and make such orders thereon as it deems fit."
14. Rule 161 (ii) is pari materia with Article 311 (2) (b) of the Constitution of India. Article 311 of Constitution of India is reproduced as under:-
"311 (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges [Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply--]
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."
15. The scheme of the aforesaid provisions guarantees an enquiry into the alleged misconduct of the government servant as a rule whereas dispensing with the same is an exception. Sub clause (2) of Article 311 specifically prohibits dismissal, removal or reduction in rank of a government servant without holding any inquiry and without giving him an opportunity of being heard in respect of the charges on which he may be subjected to any of the major punishment. Explanation to the aforesaid Article is given in proviso to Article 311(2), wherein sub clause (a) (b) and (c) do envisage a possibility when a person is dismissed, removed or reduced in rank on the ground of misconduct which has led to his conviction on a criminal charge or where the authority, empowered to dismiss or remove or reduce in rank, is satisfied that for some reason, to be recorded by the authority in writing, it is not reasonably practicable to hold such enquiry; or where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such enquiry.
16. In the instant case, the impugned order of dismissal from service has been passed purportedly in exercise of power under sub clause (b) and (c). For attracting sub clause (b) it is essential that the authority empowered to inflict major punishment must feel satisfied that for some reason or the other, the inquiry cannot be held but that reason also has to be recorded in writing which should indicate that it was not reasonably practicable to hold such enquiry unless such a finding is recorded, the order passed under the said provision would become bad.
17. The reason so recorded must also be valid and relevant and not merely a camouflage. It is not pure subjective satisfaction of the authority to dispense with the inquiry but his discretion is circumscribed by the requirement of recording such a reason which, of course, has to be a valid reason for which the inquiry cannot be practically held. For example, if a government servant is available, the documents, witnesses or the material on which the inquiry is to be conducted and there is no other legal or practical impediment, there would be no reason to dispense with the inquiry and pass the order of major punishment.
18. Sub clause (2) of Article 311, which is the substantive provision, does not lay down any exception nor confers any discretion upon the empowered authority of not holding an inquiry into the charge of misconduct against a government servant and to pass order without affording any opportunity. It is only in the second proviso that an exception is carved out but an exception cannot take a place of rule and has to be applied only in the circumstances given therein as may be permissible under the said Article. The exception is that the authority is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to hold such enquiry.
19. The Hon'ble Apex Court in the case of Union of India versus Tulsiram Patel; (1985) 3 SCC 398 observed as under:
"The recording in writing of the reason for dispensing with the inquiry must proceed the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particular, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances."
20. In the case of Jaswant Singh versus State of Punjab; AIR 1991 Supreme Court 385, the Hon'ble Apex Court has held that the decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in the court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer.
21. The Hon'ble Apex Court while considering the identical rule made in the Railway Protection Force Rules, 1959 which has been substituted by RPF Rules 1987, under which the petitioner has been dismissed, in the case of Chief Security Officer and Others Vs. Singasan Rabi Das; (1991) 1 SCC 729, has held that there is total absence of sufficient material or good grounds for dispensing with the inquiry. The relevant paragraph 3, 4 and 5 are reproduced as under:-
"3. The High Court held that the reasons given in the impugned order were sufficient and on those materials the disciplinary authority could have been satisfied that it was not reasonably practicable to follow the normal procedure. However, it was of the view that the respondent was entitled to a show cause notice against the proposed punishment and since an opportunity had not been given to him to show cause against the proposed punishment the order of removal was bad. In that view the High Court quashed the order of removal. However, it stated that it would be open to the disciplinary authority to pass a fresh order after giving an opportunity to the respondent herein to show cause against the proposed punishment.
4. It was contended by Dr. Anand Prakash, learned Counsel for the appellant before us that in view of the decision of this Court in Union of India and Anr. v.. Tulsi Ram Patel, reported at 1985 (3) SCC P. 123 no fresh notice was required to show cause against the proposed punishment before the order of removal was passed and hence the decision of the High Court is liable to be set aside.
5. In our view it is not necessary to go into the submissions made by Dr. Anand Prakash because we find that in this case the reason given for dispensing with the enquiry is totally irrelevant and totally insufficient in law. It is common ground that under Rules 44 to 46 of the said Rules the normal procedure for removal of an employee is that before any order for removal from service can be passed the employee concerned must be given notice and an enquiry must he held on charges supplied to the employees concerned. In the present case the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witnesses of the security/other Railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. In this view it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment In the result the appeal fails and is dismissed. There will be no order as to costs."
22. Similarly in the case of Indian Railway Constructions Company Limited Vs. Ajay Kumar; (2003) 4 SCC 579, the Hon'ble Apex Court while considering the similar provision made in the concerned rules, was of the view that it is fairly well settled that the power to dismiss an employee, by dispensing with an inquiry, is not to be exercised so as to circumvent the prescribed rule.
23. Adverting to the facts of the present case impugned order of the dismissal of the petitioner dated 16.11.2011 has been passed dispensing with the inquiry with the following observation.
"jktdh; jsyos iqfyl xqokgkVh }kjk vkj{kh jathr dqekj jkuk dh fxjQ~rkjh o U;kf;d fgjklr lEcU/kh nLrkostksa ls Hkh Li"V izek.k feyrs gS fd mDr vkj{kh voS/k gfFk;kj o xksyh ck:n cnfu;fr ls vius ikl j[ksa Fkk vr% vkj{kh }kjk fd;s x;s bl xEHkhj nqjkpkj ds fy, jslqc fu;e 153 ds rgr bl dkj.k ls tkap djuk mfpr ugha gksxk D;ksafd fd;s x;s d`R; ds Li"V ifjfLFkfr tU; ,oa nLrkosth izek.k fjdkMZ esa miyC/k gS rFkk lkekU; jslqc fu;e 153 dh tkap ls vkSj [email protected]; lk{; lkfcr djus dh vko';drk ugh gS blds vfrfjDr fd;k x;k d`R; vR;Ur xEHkhj vijk/k gS rFkk cy] jsyos ,oa jk"Vª dh lqj{kk ds fy, xEHkhj [krjk gSA"
24. The aforesaid reasoning, in my view, is irrelevant and insufficient in law for dispensing with the inquiry because what were the circumstantial and documentary evidence and why the alleged documentary / circumstantial evidence were not required to be proved and as to whether they were admissible under law without any proof or not and how the alleged crime is a danger for the security of forces, railway and nation was not recorded, while the petitioner was already enlarged on bail. Thus, the mandatory requirement under Rule 161 (ii) has been apparently complied with vague assertion which is nothing but a camouflage. Therefore, I am of the view that the reasons given for dispensing with the enquiry are not sufficient and impugned order of dismissal dated 16.11.2011 is not sustainable in the eyes of law.
25. The petitioner has been acquitted by means of the judgment and order dated 30.05.2014 passed in Sessions Case No.46 (K) of 2013 under Section 25 (1-A) of Arms Act arising out of G.R. Case No.9430 of 2011 (State of Assam Vs. Ranjit Kumar Rana). The Sessions Judge has recorded a categorical finding that prosecution has miserably failed to prove that the accused person was in possession of any unlawful arms and ammunition and therefore, prosecution is found to have failed to bring home the guilt of the accused. The relevant portion of the judgment is reproduced as under:-
"10. From the above evidence of all the witnesses it appears that a bag containing arms and ammunition seized in the instant case was found abandoned in a railway coach and the accused was apprehended on suspicion. There is no evidence at all to indicate that the bag, seized in the instant case, containing arms and ammunition belonged to the accused person. In order to hold a person guilty of possessing illegal arms, prosecution has to prove beyond reasonable doubt that the alleged illegal arms and ammunition were found from the conscious possession of the accused concerned. In the instant case, not to speak of conscious possession, there is absolutely no evidence to show that the arms and ammunition seized in the instant case were found in possession of the accused. Evidence of all the witnesses transpires that the arms and ammunition, seized in the instant case, were found in a bag which was kept abandoned in the seat of a coach. According to pw.2 when the bag was found in the coach, accused was loitering in the platform whereas, according to pw.3, accused was found inside the coach. In any view of the matter, there is no evidence to show that the bag in the instant case containing arms and ammunition was found in the possession of the accused.
11. In the above facts and circumstances, it is abundantly clear that prosecution has miserably failed to prove that the accused person was in possession of any unlawful arms and ammunition and therefore, prosecution is found to have failed to bring home the guilt of the accused. Accordingly, accused Ranjit Kumar Rana is acquitted of the charge u/s 25 (1-A) of Arms Act and set at liberty forthwith subject to the condition of bail bond submitted in terms of Section 437-A of Cr.P.C."
26. As admitted by learned counsel for the respondent, on the basis of instructions, no appeal has been filed against the aforesaid judgment. Thus, the appellant has been exonerated of the charge levelled against him, on the basis of which, the petitioner was dismissed from service by means of the impugned order dated 16.11.2011. Therefore, the basis of the impugned order itself does not subsist so it would be unjust and unfair and rather oppressive to allow the dismissal order to sustain.
27. The petitioner was dismissed on account of lodging of F.I.R. against him and his arrest whereas he was enlarged on bail but the trial was not concluded.
28. The petitioner was suspended by means of the order dated 07.10.2011 under Section 9.1 (i) of RPF Act 1957 and Rule 134.2 & 3 of RPF Rules 1987. Section 9 (1) (i) provides that any superior officer may suspend any enrolled member of Force. Rule 133 of RPF Rules 1987 provides that the enrolled members of the Force may be placed under suspension by the authority as specified in Schedule III.
29. Rule 134 (2) provides that an enrolled member of the Force may be placed under suspension where a preliminary inquiry into allegation made has revealed a prima facie case justifying criminal or departmental proceedings which are likely to lead to his conviction or dismissal, removal or compulsory retirement from service and Sub-section (3) provides that a case against him in respect of any criminal offence is under investigation, inquiry or trial. Rule 136 (1) provides that a member of Force shall be deemed to have been placed under suspension by an order of the competent authority.
30. In view of the fact that a F.I.R. was lodged and the petitioner was arrested on 07.10.2011, he was placed under suspension. However subsequently the petitioner was dismissed from service by means of the order dated 16.11.2011 under RPF Rules 1987 while the petitioner was already enlarged on bail and the trial had not concluded and the petitioner was not convicted.
31. Chapter-XII of RPF Rules 1987 provides the disciplinary and penal punishments. Dismissal is one of the major punishment as provided under Rule 148.2. Rule 156 provides imposition of punishment of dismissal, etc. Sub-rule (a) (i) provides dismissal on conviction by a criminal court and sub-rule (iii) provides dismissal on account of discreditable conduct affecting the image and reputation of the Force. The relevant Rule 156 (a) (i) and (iii) are reproduced as under:-
"156. Imposing of punishment, of dismissal, etc:
Before coming to any lower punishment, the disciplinary authority with a view to ensuring the maintenance lf integrity in the Force shall consider the award of punishment of dismissal or removal from service to any member of the Force in the following cases namely:-
(a) Dismissal:
"(i) conviction by a criminal court;
(ii)......
(iii) discreditable conduct affecting the image and reputation of the Force;
(iv).........
(v).........
(vi).............."
32. Rule 162 provides the procedure to be followed in case of conviction by a criminal court. Rule 162.4.2 provides that without prejudice to the rights of the accused on final acquittal, such proceedings shall be taken up as soon as the first trial court has passed orders of conviction and disposed of immediately in order to avoid the wasteful expenditure involved in allowing the enrolled member of the Force to remain under suspension.
33. In view of above, it is apparent that an enrolled member of the Force may be suspended where a preliminary inquiry into allegation made has revealed a prima facie case justifying criminal proceedings which are likely to lead to his conviction or where a case against him in respect of any criminal offence is under investigation, inquiry or trial. However he can be dismissed from service on conviction by a criminal court or discreditable conduct affecting the image and reputation of the Force. However, the same can be resorted as soon as the first trial court has passed orders of conviction as provided under Rule 162.4.2.
34. In the present case the respondents without waiting for the conclusion of the trial in which the petitioner may have been convicted, though he has been acquitted, dismissed the petitioner from service by means of the order dated 16.11.2011 on account of lodging of F.I.R. and arrest dispensing with the enquiry without issuing any charge-sheet and holding any enquiry in accordance with law. So far as the ground of discreditable conduct affecting the image and reputation of the Force is concerned, any such conclusion could also not be drawn before conclusion of the trial, that too without holding any enquiry in accordance with law, as it is a settled proposition of law that an accused can not be held guilty and punished without trial, in which the petitioner has been acquitted. Therefore, this Court is of the view that the punishment order was passed in an arbitrary and illegal manner.
35. In view of above this Court is of the considered opinion that the impugned order dated 16.11.2011 is not sustainable at all and is liable to be quashed and the petitioner is entitled to be reinstated in service with all consequential benefits of service and back wages.
36. The writ petition is, accordingly, allowed. The impugned order dated dated 16.11.2011 is hereby quashed. The petitioner shall be reinstated into service. The petitioner is entitled for all consequential service benefits including back wages w.e.f. the date of dismissal within a period of three months from the date of receipt of certified copy of this order.
37. No order as to costs.
Order Date :- 28.2.2019 (Rajnish Kumar, J.) Haseen U.